Even the simplest divorces involve some degree of emotional, financial, or legal difficulty. However, all of these complexities compound when the divorce involves active duty military personnel. For this reason, it’s important to seek the counsel of a reputable military law attorney.
Military personnel who are involved in a contested divorce, custody battle, or other family law issues in California are subject to a mixture of military law and California laws. There are certain unique financial rights for former spouses of military personnel that entitle them to military benefits. For example, valuable military pensions are community property, even for short marriages.
If you or your spouse is active duty military, it’s important to work with an experienced California military family law attorney with experience in this area. Envision Family Law, LLP has a tradition of excellence in handling military family law matters.
Military Divorce in California
When civilians separate, they usually file for divorce in the county where they both live. However, a military member must file for divorce in the location where their spouse is stationed or in the state where their spouse resides. To further complicate matters, the state and county of residence for a deployed service member may not be the base location, as residency is not immediately established upon deployment.
In the case of California, one of the spouses must live in California or be stationed at a base there to file for divorce in the state.
It’s important to remember that military divorces that take place while one spouse is deployed for a long period are slightly different from a standard divorce in California. In a civilian divorce, the party who does not file will receive a summons and a divorce application. Civilians need to complete these documents promptly. Military members receive the same documents, but there is greater leniency on how quickly they need to be completed. This reduced urgency is because getting these documents to the correct location isn’t always straightforward, which can lead to delays in the process.
If the process is delayed, the deployed spouse is protected by the Servicemembers Civil Relief Act (SCRA) from any of the usual penalties for a failure to respond. The SCRA enables the court to delay the divorce hearing for the length of the military spouse’s active duty.
The distribution of child support and military benefits is also something to keep in mind during divorce proceedings. The military requires spousal and child support payments to begin immediately upon the date of separation. However, California law will determine the maximum amount a service member pays.
Military benefits will also be divided between the separated spouses. The distribution amounts are determined by calculations laid out in the Uniformed Services Former Spouses’ Protection Act (USFSPA). During a divorce, a military law attorney will help their client understand these distribution amounts, and what they would be owed post-seperation.
The Uniformed Services Former Spouse Protection Act (USFSPA)
The USFSPA established military pensions as property that can be divided in a divorce. It also grants states the right to choose how this property will be divvied up during a divorce, separation, or annulment. California uses the “community property” approach to dividing property for a divorce. During a divorce in a community property state, all property held by either party will presumptively be divided evenly.
If domiciled in California, a marriage of any length will entitle a military spouse to their former partner’s benefits. A service member’s domicile is not simply the last place they lived before beginning active duty. Instead, it is their “true, fixed, and permanent home.” Domicile is not automatically changed to where military personnel are stationed.
Demonstrating the intent to change domicile is as simple as obtaining a new driver’s license, registering to vote, or registering a vehicle. It’s important to know that if a military member changes domiciles, the laws of the new domicile are likely to apply to the pension. That said, the military spouse can elect to allow California to have jurisdiction over property division. If you’re active duty military and seeking a divorce, it’s important to discuss which jurisdiction would better serve your interests with an experienced military law attorney.
Military Child Custody Issues
There are special California and Federal laws that safeguard and protect the parental rights of military parents while on active duty. California helps military parents who are fighting for custody retain access to the court system before and during their deployment.
For example, if deployment is imminent, every effort will be made to expedite a custody hearing. If it’s not possible to move it up or the parent has already been deployed, every effort will be made to have the parent attend the hearing virtually. California Family Code Section 3047 sets forth the custodial rights of military parents on active duty and does not allow for any permanent changes in custody as a result of deployment.
If one parent is deployed, the other parent will be granted temporary primary custody. In a normal custody dispute, a parent who does not spend a significant amount of time with their child may be at greater risk of losing primary custody. However, in the case of military members, the absence will not be considered evidence for a permanent change in custody orders.
In short, California law and military law both show leniency to deployed parents during custody hearings. This enables a fair and efficient custody rights process that does not punish a deployed spouse for their demanding military schedule. While the process is more lenient, it’s still wise to work with a military law attorney during any child custody disputes.
Call an Expert California Military Law Attorney
If you’re a service member or are married to one, you are subject to special California and Federal laws regarding divorces, child custody, and other family law issues. Without the help of an experienced California military law attorney, navigating a divorce can be confusing and frustrating.
At Envision Family Law, LLP, our attorneys specialize in family law and military law, which enables us to guide you through the complexities of a military divorce. Contact us today for help with divorce, child custody, and USFSPA benefits cases.